Citation NR: 9734458
Decision Date: 10/10/97 Archive Date: 10/16/97
DOCKET NO. 96-02 835 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of service connection for disabilities claimed
as due to herbicide exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. L. Smith, Associate Counsel
INTRODUCTION
The veteran had active service from December 1956 to
September 1958.
This appeal is before the Board of Veterans’ Appeals (Board)
from a May 1995 determination of the Waco, Texas, Department
of Veterans Affairs (VA) Regional Office (RO) which denied
service connection for disabilities claimed as due to Agent
Orange on the basis that the claim was not well grounded.
The Board notes that the veteran was denied service
connection for residuals of Agent Orange exposure in a
May 1986 decision of the Board. The Board has a legal duty
to address the issue of whether new and material evidence has
been presented to reopen the claim regardless of whether it
has been addressed by the RO. Barnett v. Brown, 8 Vet.App. 1
(1995), aff’d, 83 F.3d 1380 (Fed. Cir. 1996). Since a
determination of whether new and material evidence has been
presented to reopen the claim is very similar to a
determination of well-groundedness, the veteran is not
prejudiced by the Board re-framing the issue. Therefore, the
issue has been recharacterized as is noted on the first page
of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he was exposed to concentrated
Agent Orange in a supply warehouse during active service in
the military in the canal zone of Panama. The veteran argues
that he has a nerve disorder that is worsening, and that
service connection is warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
new and material evidence which would support reopening his
claim for service connection for disabilities claimed as due
to herbicide exposure.
FINDINGS OF FACT
1. In a May 1986 decision, the Board denied the veteran’s
claim for service connection for residuals of exposure to
Agent Orange.
2. The evidence received since the Board’s May 1986 decision
is not relevant to the question of whether the veteran has
disabilities that are the result of exposure to herbicides
during active service.
CONCLUSION OF LAW
Evidence received since the Board’s May 1986 decision denying
the veteran’s claim for residuals of herbicide exposure,
which is final, is not new and material, and the claim for
this benefit is not reopened. 38 U.S.C. §§ 4003, 4004
(1982); 38 C.F.R. §§ 19.104, 19.185 (1985) (currently
38 U.S.C.A. §§ 5108, 7104 (West 1991 & Supp. 1997); 38 C.F.R.
§§ 3.156, 20.1100 (1996)).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran seeks to reopen his claim for service connection
for residuals Agent Orange exposure which the Board denied in
a May 1985 determination. When a claim is finally denied by
the Board, the claim may not thereafter be reopened and
allowed, unless new and material evidence has been presented.
38 U.S.C. §§ 4003, 4004 (1982); 38 C.F.R. §§ 19.104, 19.185
(1985) (currently 38 U.S.C.A. §§ 5108, 7104 (West 1991 &
Supp. 1997); 38 C.F.R. §§ 3.156, 20.1100 (1996)); Evans v.
Brown, 9 Vet.App. 273, 283 (1996).
When a claimant seeks to reopen a finally denied claim, the
Board must review all of the evidence submitted since that
action to determine whether the claim should be reopened and
readjudicated on a de novo basis. Glynn v. Brown, 6 Vet.App.
523, 529 (1994). In order to reopen a finally denied claim
there must be new and material evidence presented since the
time the claim was last finally disallowed on any basis, not
only since the claim was last denied on the merits. Evans v.
Brown, 9 Vet.App. 273 (1996).
When the veteran seeks to reopen his claim under 38 U.S.C.A.
§ 5108, the Board must conduct a two-step analysis. First,
the Board must determine whether the evidence submitted since
the previous denial is "new and material." Second, if the
evidence is found to be new and material, the claim is to be
reopened and the Board must then "assess the new and material
evidence in the context of the other evidence of record and
make new factual determinations." Masors v. Derwinski,
2 Vet.App. 181, 185 (1992) (quoting Godwin v. Derwinski,
1 Vet.App. 419, 425 (1991)), and Jones v. Derwinski,
1 Vet.App. 210, 215 (1991)). For the purposes of
establishing whether new and material evidence has been
submitted, the credibility of the evidence is to be presumed.
Justus v. Principi, 3 Vet.App. 510, 513 (1992).
"New and material evidence" means evidence not previously
submitted to agency decision makers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a) (1996).
The United States Court of Veterans Appeals (Court) has held
that "new" evidence is that which is not merely cumulative of
other evidence of record, and that "material" evidence is
that which is relevant and probative of the “issue at hand”
and which is of sufficient weight or significance (assuming
it's credibility) to establish a reasonable possibility that
the outcome would change when it is considered in the context
of all evidence, both new and old. Cox v. Brown, 5 Vet.App.
95, (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991)
(emphasis added); see also 38 C.F.R. § 3.156.
The Court has recently clarified that, with respect to the
issue of materiality, the newly presented evidence need not
be probative of all the elements required to award the claim
as in this case dealing with a claim for service connection.
Evans v. Brown, 9 Vet.App. 273, 284 (1996) (citing Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff’d 78 F.3d 604 (Fed.
Cir. 1996) (table)). However, such evidence must tend to
prove the merits of the claim as to each essential element
that was a specified basis for the last final disallowance of
the claim. If the evidence is “new” and “probative,” then it
must be determined whether the evidence presents a reasonable
possibility of changing the outcome of the prior decision
based on all the evidence. If these conditions are met, then
the evidence is both “new” and “material.” Evans, 9 Vet.App.
at 284.
Under Evans, 9 Vet.App. 273 (1996), evidence is new and
material if it (1) is “new” in that it was not previously of
record and is not merely cumulative of evidence previously of
record, (2) is “probative” of the issue at hand, and (3) in
light of all of the evidence of record, it raises a
reasonable possibility that the outcome would change.
The "issue at hand" pertaining to the petition to reopen the
finally denied claim for service connection for disabilities
claimed as due to herbicides is whether the veteran’s current
disabilities are related to an injury or disease incurred
during active service. See Colvin, 1 Vet.App. at 174. To
establish service connection for a claimed disability, the
facts, as shown by the evidence, must demonstrate that a
disease or injury resulting in current disability was
incurred or aggravated during active service. 38 U.S.C.A.
§ 1131.
The record shows that the veteran was denied service
connection for the residuals of Agent Orange exposure in a
May 1986 determination. In that determination, the Board
found that the there was no evidence of claimed exposure to
Agent Orange, or a chemical containing dioxin. The Board
also found that there was no medical evidence of record that
disclosed disorders which could reasonably be attributed to
exposure to such chemicals. Evidence considered during the
earlier determination included lay statements, VA treatment
records and an Agent Orange examination, statements of
private physicians and treatment records, and the service
medical records.
Since the May 1975 decision, private clinical records and a
statement from the veteran’s physician have been added to the
record. Treatment records from the private mental health
clinic show treatment from January 1985 to November 1991.
The records show continuing treatment for the veteran’s
psychiatric symptoms. A March 1991 private medical report
shows that the veteran underwent a physical examination.
Also added to the record, treatment records from the
veteran’s private physician show treatment from May 1976 to
March 1995 for the veteran’s general complaints. The
veteran’s physician also submitted a March 1995 statement.
The physician reported that the veteran has chronic
schizophrenia and has a history of a seizure disorder, as
well as some recent chest pains.
To the extent that the foregoing evidence is new in that it
was not of record at the time of the May 1986 denial, the
Board concludes that it is not material as it is not
probative to the issue at hand. The evidence added to the
record since the last final denial does not show that the
veteran’s treatment for his general complaints or treatment
for his psychiatric disorder are related to herbicide
exposure during service. Because the medical evidence added
since the last final denial does not address the “issue at
hand,” in that it does not show a disability related to an
injury or disease incurred during service, it is not new and
material evidence.
In light of the foregoing, the Board must conclude that the
veteran has not submitted “new” and “material” evidence
sufficient to reopen his claim. Evans v. Brown, 9 Vet.App.
273, 284 (1996); 38 C.F.R. § 3.156. The veteran has not
submitted new and material evidence addressing the underlying
question of whether his current disorders are related to
herbicide exposure during active service. Because the
additional evidence is not “new” and “material,” his claim
must be denied.
ORDER
New and material evidence having not been submitted to reopen
a claim of service connection for disabilities claimed as due
to herbicides, the benefit sought on appeal is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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